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2022 (5) TMI 1285 - HC - Income TaxRevision u/s 263 - Services provided by the petitioner should not be treated as a “consultancy services” and taxed under section 9(1)(vii) - AO has determined the PF of the assessee in India but has not thoroughly examined the applicability of 115JB - case of the petitioner was selected for scrutiny under CASS and a notice under section 143(2) was issued to the petitioner - HELD THAT:- A reading of the Explanation, makes it clear the power of the Principal Commissioner or Commissioner under sub-section extends to such matters as had not been considered and decided in an appeal. The appeal has not been considered and decided. Thus, there is no embargo under Section 263 of the Income Tax Act, 1961 for the 1st respondent to pass order. The scope of appeal before the Appellate Commissioner is confined to tax ability of receipts towards technical services only. The Assistant Commissioner has not been considered the issue from the point of view Section 115 JC of the Income Tax Act, 1961. Whether the facts on merits warrants invocation of Section 11JB of the Income Tax Act, 1961 or not would render the proceedings without jurisdiction. Invocation of Section 263 of the Income Tax Act, 1961 by the first respondent on 15.03.2021 vide notice bearing Reference No.CIT/IT/CHE/113/2020-21 which has culminated in the impugned order dated 30.03.2021 cannot be said to be without jurisdiction merely because the intimation of DIN to the order passed under Section 263 was one day after the order was passed. Para No.5 of the CBDT Circular No.19/2019 dated 14.08.2019 makes it clear that communication issued manually can be regularised within 15 days of the issuance. As the scope of judicial review under Article 226 of the Constitution of India is limited, I am refraining for discussing on merits of the case. Suffice to state that the proceeding initiated by the 1st respondent was not without jurisdiction. The argument of the petitioner that the assessment order was not prejudicial to the interest of revenue and therefore the proceeding under Section 263 was liable to be quashed cannot be countenanced. A proceeding under Section 263 of the Income Tax Act, 1961 cannot be scuttled. Further, the petitioner participated in the proceeding initiated under Section 263 of the Income Tax Act, 1961. Therefore, it is not open to the petitioner to turn around to state that the proceeding was without jurisdiction. Thus find any merits in the present writ petition. This writ petition is therefore liable to be dismissed with liberty to the petitioner to work out the Appellate remedy before the Appellate Tribunal under Section 254.
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